Issues concerning libraries and the law - with latitude to discuss any other interesting issues Note: Not legal advice - just a dangerous mix of thoughts and information. Brought to you by Mary Minow, J.D., A.M.L.S. [California, U.S.] and Peter Hirtle, M.A., M.L.S. Follow us on twitter @librarylaw

As I suspected, it's much easier and more flexible. So if any of you are looking for new posts based on categories, you may not find them. Use the technorati tags at the bottom of a post instead. If it works like I think it will, I'll probably stop using categories altogether.

Update: It looks as if users who click on a technorati tag below will get everyone in the world's posts with those tags. That's useful, but it would be nice to have an option to limit it to this blog, the way flickr does. Well, there's always the search button in the blog...

I just read in ALA News that Iowa has a new bill tying state funding to library filters. Does your state have a library filtering law? According to Pam Greenberg's chart at the National Conference of State Legislatures, 15 states do. She posts an easy to read chart with summaries of the state law requirements, and links to the statutes themselves.

For example, California requires public libraries that receive state funds to adopt a policy regarding access by minors to the Internet, but there aren't any prescriptions on what the policy must say.

If your state doesn't have a library filtering law, how likely is it, do you think, that you will have one soon?

I asked Pam what she sees as the current trend, and she replied (reprinted with permission):

Several years ago, state legislatures were responding to citizen concerns by introducing and enacting legislation relating to Internet filtering or access policies in schools and libraries. But since Congress passed the Children's Internet Protection Act in 2000 and the Supreme Court upheld the law in 2003, fewer states have seen the need for legislation in this area.

No, not without giving the patron notice and an opportunity to appeal, at least according to a federal district court in North Carolina this month.

Ralph Miller sued the library, the library director, and the librarian who barred him from the Internet. He claims that she came up behind him when he was reading the Russian newspaper "Pravda.ru" online. "Unwelcome and unsolicited" nude image(s) had popped up on his computer. Miller says that the librarian ordered him off the computer at the Mt. Airy (N.C.) library and banned his access at all thirteen libraries in the system.

The court just ruled in favor of Miller. That is, he's made a valid due process claim. He has a First Amendment right of access to information (Kreimer, Neinast, Armstrong cases). At a minimum, the library must give users notice and an opportunity to appeal.

The court said that the Supreme Court's decision upholding the Children's Internet Protection Act (CIPA) makes it clear that libraries can adopt Internet use agreements prohibiting users from accessing visual depictions of child pornography and obscenity. That does not mean, however, that libraries can dispense with due process.

Minow take: I'm surprised (again) if the library doesn't have some appeals process, essential for legally enforceable behavior policies. Maybe the patron is telling the truth - what if he was just trying to read Pravda? What was the nature of the photos? (Remember the Hawaii patron who sued the library when he was allegedly banned looking at pictures of men with their shirts off?) Miller deserves a chance to tell his side of the story before summarily having his access taken away. Is there more to the library's side of the story? Maybe he should have been banned, after getting due process. We need the facts, which we'll get if it goes to trial. More likely it'll settle. If you're in North Carolina and follow this case, please send updates back to LibraryLaw blog.

The State Library of Iowa offered a legal update for libraries in June 2003 (I just stumbled upon it), based on the Lawyers for Libraries training offered by the American Library Association. It covers privacy, warrants, liability, public forum and free speech issues. It's in outline form, and gives relevant case citations.

Good question, right? Good topic for a law review article, says my sister Martha. Martha Minow spearheaded an amicus brief arguing (on statutory grounds) that universities should not have to allow military recruiters access to students as a condition of receiving funding from the Pentagon. The UNIVERSITIES WON on First Amendment grounds in the Third Circuit on Nov. 29, 2004.

Sound similar to the libraries arguing that they should not have to install filters as a condition of receiving erate discounts and lsta funds? The LIBRARIES LOST in the Supreme Court in 2003.

Martha speculates that it may come down to a specific message versus a general message. That is, the holding in the University case is that the speech that law schools want to engage in--pro equal treatment--was suppressed. The universities were thus forced to carry the government's message. She asks if the libraries could make the same argument -- is there a message that is suppressed with filters and one that's forced? Perhaps the message is a general one, that speech is curbed? Is this different from a specific message?

The University case decision distinguishes itself from the Library case in a footnote. The court emphasizes the difference between conditions on a specific source of funds and conditions on the use of general federal funds.

(Mary) Minow take: To me, it looks like the court says the University case is different because it was a GENERAL spending program. In the Library case, the funds and discounts that were denied were those earmarked for Internet access - thus the federal government could condition the Internet use. This distinction could be hugely important in assessing the state mini-CIPA laws, that require filters as a condition of any state money as opposed to state funding for Internet access. If you live in a state with a mini-CIPA, you should read this case.

FORUM FOR ACADEMIC AND INSTITUTIONAL RIGHTS v. DONALD H. RUMSFELD et al, No. 03-4433, UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT, 2004 U.S. App. LEXIS 24598, June 30, 2004, Argued, November 29, 2004, Filed

Pennsylvania law that requires ISPs to block alleged child porn siteshas just been struck down, both on First Amendment grounds and dormant Commerce Clause grounds. I haven't read the entire opinion, but what I have read suggests that the court's main reasons were: (1) given existing technical limitations, the law essentially pressures ISPs into blocking a lot of fully protected material as well as the unprotected child pornography; (2) the orders are issued before a full trial on the merits and are thus unconstitutional prior restraints (see the discussion of prior restraint law in this article for more); and (3) the law ended up excessively interfering not just with access to protected material by Pennsylvanians but also with such access by residents of other states, which makes the law an unconstitutional state regulation of interstate commerce (not all such state regulations are unconstitutional, but some are). The opinion is here.

It would be an easy vote to say "no porn in libraries." But mountains of documentation show that you can't screen out porn without screening out lots of sites with words like "Dick Cheney." The Supreme Court recognized that filters are far from perfect. Filters are based on keywords. Image recognition software for this still blocks out chimpanzees, babies, art etc. and is even worse than keyword software.

That's why the Supreme Court said that although it is Constitutional for Congress to require libraries to use filters (at least those libraries that get certain federal discounts and grants), the libraries must disable the filters on request by an adult patron. For more detail, see an article I wrote for First Monday.

The Phoenix City Council, however, voted to require all filters all the time. If someone has a link to the ordinance, please send it. This restrictive measure is ripe for a lawsuit. Meanwhile, I guess everyone in Phoenix will have to find full Internet access elsewhere.

There are no public libraries filtering violent websites that have been sued that I know of. Don't be the first. I mention this because I still get asked by librarians if they HAVE to filter violent websites under the Children's Internet Protection Act (CIPA and definitely not). CIPA requires libraries with certain federal dollars or discounts to try to block C-O-H - Child pornography, Obscenity and "Harmful to Minors." For legal definitions of what CIPA libraries are supposed to try to block, see an article I wrote last year for LLRX.com.

In fact, I believe [see First Monday] a policy or practice blocking violent sites in a public library is likely to attract a lawsuit by a civil liberties group, and I think the library would lose.

I bring this up now because free speech won in federal district court again last week, in Video Software Dealers Assn. v. Norm Maleng. The state of Washington passed a law last year that would have imposed a $500 fine to people renting video games to minors under 17 that depicted realistic violence against law enforcement officers.

The Video Software Dealers Assn filed a lawsuit. The Media Coalition (including the Freedom to Read Foundation) filed a brief as amici curiae in support of the Video Software Dealers Assn. The state's position is summarized here (written before the decision in favor of the Video Software Dealers last week). This is at least the third court that has clearly said recently that the First Amendment trumps restrictions on violent speech, even for children.

Do I want kids to see gruesome violence? No. Do I want the state defining and enforcing what kids can and cannot see? Again, no.

I want parents to make these decisions for their own children, and I'm in favor of efforts to persuade producers and more importantly advertisers to show some responsibility. NO ads during preschool TV shows is a great idea. In fact I highly recommend Newton Minow's book Abandoned in the Wasteland, an effort to curb violence in the media aimed at children while protecting the First Amendment. As my dad is fond of saying, "just because you have the right to do something doesn't mean it's the right thing to do." Both my father and my sister Nell are involved in Jim Steyer's Common Sense Media, an important step in the right direction.

Recently introduced federal legislation could have a major impact on libraries, bookstores, and other distributors of entertainment material, such as books. Protecting children from material deemed "harmful to minors" is an admirable ideal, but this bill casts a wide net.

H.B. 4239, the “Parents’ Empowerment Act,” if enacted, would allow a parent to sue in federal court anyone who knowingly disseminates any media containing “material that is harmful to minors.” The only exception is that of parent ownership of the materials -- there is no exception for libraries. If the minor is the prevailing party, they will be awarded a minimum of $10,000.

The bill is directed at distribution that “a reasonable person can expect a substantial number of minors to be exposed to the material and the minor, as a result to exposure to the material, is likely to suffer personal or emotional injury or injury to mental or moral welfare.” The language concerning "injury to mental or moral welfare" seems to be not be viewpoint neutral, instead focusing on the morality of the material -- this language presently occurs nowhere in the US Code.

An additional problem is that the language for "distribution" is so vague, this bill could affect not only libraries' print collections, but also Internet searching on library computers and library blogs. According to the Christian Coalition, stopping Internet distribution of "pornography" is the purpose of this bill.